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In Brazil v. Dole, No. 14-17480 (9th Cir. Sept. 30, 2016), the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part three different orders issued by the U.S. District Court for the Northern District of California.  In doing so, the Ninth Circuit (1) confirmed that in order to state a false advertising claim under the unlawful prong of California’s Unfair Competition law, a plaintiff must allege that he relied on the purportedly misleading statements, (2) clarified what types of evidence were sufficient to create an issue of material fact sufficient to defeat summary judgment based on the reasonable consumer standard, and (3) confirmed that, in order to certify a damages class under Rule 23(b)(3), a plaintiff must present a damages model that provides a method of calculating damages using proof common to the class.
Continue Reading Ninth Circuit Confirms Brazil v. Dole Decertification Due to Faulty Damages Model

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth Circuit either rejected or minimized the use of preemption and primary jurisdiction as defenses to allegations of false labeling of food and cosmetics. …
Continue Reading Recent Ninth Circuit Decisions in False Advertising Consumer Class Action Cases May Prevent Preemption and Relegate the Primary Jurisdiction Doctrine to Second-Class Status

In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink that allegedly caused harmful side-effects.  The plaintiffs brought claims under Florida’s consumer protection statute, known as the Deceptive and Unfair Trade Practices Act, as well as federal and common law breach of warranty claims.  The Plaintiffs sought to certify a class composed of all purchasers of the “Redline Extreme Energy Drink” (the “Product”) since 2008, a drink that retailed for approximately $3.00 per bottle.
Continue Reading Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

On December 8, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted defendant Dole’s motion for summary judgment of the plaintiff’s false labeling claims in Brazil v. Dole Packaged Foods, LLC.  The court granted summary judgment on the ground that the plaintiff had failed to present sufficient evidence that the challenged “All Natural Fruit” label was likely to mislead reasonable consumers.  As one of few summary judgment opinions in “All Natural” cases, this opinion provides valuable insight into issues that arise on the merits of such claims.
Continue Reading Dole Defeats “All Natural Claims” for Sweet Victory

On November 6, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted in part defendant Dole’s motion for decertification in Brazil v. Dole Packaged Foods, LLC.  In May of 2014, the court had granted certification of classes under both Federal Rule of Civil Procedure 23(b)(2) and Rule 23(b)(3).  In its November 6 opinion, the court decertified the 23(b)(3) damages class because the plaintiff’s damages model failed to satisfy Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), and left certification of the 23(b)(2) injunction class intact.  The court’s analysis of the plaintiff’s damages model provides guidance on the weaknesses and pitfalls of using a hedonic regression model to measure damages.
Continue Reading Faulty Damages Model Leads to Partial Decertification

May 2014 was an active month for evaporated cane juice (“ECJ”) litigation in the U.S. District Court for the Northern District of California.  Six courts issued opinions that involved the application of the primary jurisdiction doctrine to ECJ claims.  The primary jurisdiction doctrine allows courts to stay or dismiss a complaint without prejudice, pending the resolution of an issue within the special competence of an administrative agency.  Many defendants have moved to dismiss ECJ claims based on this doctrine.
Continue Reading Courts Still Searching for Sweet Spot in “Evaporated Cane Juice” Cases: Confusion Over Applicability of Primary Jurisdiction to ECJ Claims Continues

In Lanovaz v. Twinings North America, Inc., 2014 WL 1652338, Case No. C-12-02646-RMW (N.D. Cal. April 24, 2014), the court granted-in-part and denied-in-part a motion for class certification in a false advertising case about tea labels.  The plaintiff alleged that the defendant’s tea was “misbranded” because it advertised the tea as a “Natural Source of Antioxidants.”  The plaintiff claimed that this advertising was misleading and violated California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.  The plaintiff contended that, although the tea indisputably contained flavonoids (a type of antioxidant), the Food & Drug Administration does not allow advertising about flavonoids because it has not established a recommended daily dose.  Plaintiff sought class certification under Rule 23(b)(2) (for an injunctive class) and Rule 23(b)(3) (for a damages class) of the Federal Rules of Civil Procedure.
Continue Reading Tea Manufacturer Defeats Damages – Seeking Class Action Plaintiff in an Opinion Steeped in Comcast

On April 15, 2014, in the case Caldera v. The J.M. Smucker Co., CV 12-4936-GHK, J.M. (C.D. Cal.), Smucker Company (“Defendant”) defeated the plaintiff’s motion for class certification in a case challenging the labels on Defendant’s Crisco shortening and Uncrustables food products.  The lawsuit claimed that Defendant had mislabeled its Crisco shortening with false claims about its healthfulness (such as “50% Less Saturated Fat than Butter”), and that it misleadingly labeled its Uncrustables products as “wholesome” when they contain transfat and high-fructose corn syrup.  As with many California food label class actions, the plaintiff brought suit under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), the Consumer Legal Remedies Act (“CLRA”), and breach of express and implied warranties.  The plaintiff sought restitution on behalf of the purchasers of the Crisco and Uncrustable products.
Continue Reading J.M. Smucker Company Gets Out of a Jam in Food Labelling Case

In Swearingen v. Santa Cruz Natural, Inc., No. C 13-04291 (N.D. Cal. April 2, 2014), Judge Illston of the U.S. District Court for the Northern District of California granted defendant’s motion to dismiss based on the primary jurisdiction doctrine.  The court held that the determination of the issue of whether the use of the term “evaporated cane juice” violates Food and Drug Administration (“FDA”) regulations is best left to the FDA, and that deference to the FDA is appropriate as the FDA is engaged in active rulemaking on the issue.  Judge Illston’s decision demonstrates a growing divide on the application of primary jurisdiction in the “evaporated cane juice” arena.
Continue Reading Sweet(ener) Confusion: Court Divide Over Role of Primary Jurisdiction Doctrine in “Evaporated Cane Juice” Cases Grows

On March 25, 2014, the court in In re: POM Wonderful LLC Marketing and Sales Practices Litigation, Case No. ML 10-02199 DDP (C.D. Cal.), granted a motion by defendant POM Wonderful LLC (“POM”) to decertify a previously certified class of consumers who purchased certain POM juice products.  The court granted POM’s motion because plaintiff failed to present a damages model that satisfied Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), and because the class was not ascertainable.
Continue Reading A (POM) Wonderful Result For Consumer Class Action Defendants